Understanding Elder Law

Understanding Elder Law
Care Master | Independent Living
5 Min

Understanding Elder Law

Elder Law

Elder Law is a specialized practice of law that covers a number of different legal issues affecting the elderly, their caretakers, and their friends and family members. Some common issues presented in Elder Law involve end-of-life directives, elder abuse, healthcare, estate, and financial planning, and guardianship decisions. Some of the most common reasons for utilizing an Elder Law attorney are as follows:

Guardianship, Conservatorship, and Financial Administration

When an individual becomes incapable of caring for himself or herself due to illness or age-related disabilities, courts are often called upon to facilitate the appointment of a Guardian to manage the affairs of the incapacitated person. A Guardian is then responsible for the basic needs, medical and care decisions, and the overall management of financial affairs. A Conservator is similar to a Guardian but is limited to the management of the incapacitated person’s finances.

Advance Directives, Living Wills, and Power of Attorney

Many people make arrangements in advance regarding who will step in when they become unable to care for themselves or make decisions. The types of documents typically executed in these cases are;

  • Advanced Directive -  allowing people to document their wishes for medical treatment and care should they become disabled.
  • Living Will - a written statement detailing a person's desires regarding their medical treatment in circumstances in which they are no longer able to express informed consent
  • Power of Attorney for Healthcare - a legal document that allows an individual to empower another person to make decisions about their medical care
  • Durable Financial Power of Attorney - authorizes someone to act in a wide range of legal and business matters on your behalf and remains in effect if you are incapacitated

Health Care & Benefits

An aging individual's access to healthcare and benefits can have a profound impact on their overall health, welfare, and financial well-being. Elder law attorneys can help to advocate for an individual's access to healthcare and assist with disputes over medical care including injuries, neglect, malpractice, etc. Concerns over patients’ rights and care in hospitals and skilled nursing facilities area of focus as well.

Many elderly people rely on Social Security during retirement. Problems in securing Social Security benefits, transferring benefits to spouses and dependents, or applying for benefits can require an attorney. People who are disabled can also apply for Social Security disability benefits. These applications and the appeal for unfavorable decisions from the Social Security Administration are often grouped in with elder law.

Estate Planning

One of the oldest areas of elder law is estate planning. This area of law involves the transfer of a person’s property to their intended beneficiaries after death. This often occurs through the probate process, requiring court proceedings to make sure that a deceased person's debts are paid and assets are allocated to the correct beneficiaries. Attorneys are frequently involved in estate planning matters.

Estate planning can include the drafting of a will, often facilitated by an attorney, to appoint someone to manage and distribute an individual’s estate.

Another option for estate planning is the establishment of a trust for the management of property after an individual’s death. The Grantor (establisher of a trust) creates the trust and transfers property (such as stocks, bonds, and cash) to the trust’s control. An appointed trustee then administers the trust, often disbursing funds in accordance with the terms of the trust. Alternatively, people who die without an estate plan see their property distributed in accordance with applicable state laws. This is known as intestate succession.

How Do Elder Law Attorneys Bill for Their Services?

Elder law attorneys generally charge by the hour based on the type of work. In some cases, elder law attorneys charge a predetermined flat rate charge based on the type of work. In both cases, rates will vary by state and attorney.